Filling the Lower Federal Court Vacancies - Especially the District of Delaware's

Currently, the federal judiciary has 98 vacancies among its 858 appellate and district court positions. These openings constitute eleven percent of federal judgeships nationwide. Together, they undermine the delivery of justice.

When the Senate returns after Labor Day, President Obama should expeditiously nominate, and the Senate should promptly confirm, a set of excellent lower-federal-court judges, so that the federal bench will be at – or at least close to – its full strength.

Moreover, the President and the Senate should pay special attention to the District of Delaware -- which should be a particular priority, for reasons I will explain.

Over the Years, Partisanship Has Threatened the Federal Courts - and the Situation Is Now Severe

Since the 1987 battle over Judge Robert Bork's Supreme Court nomination, Democratic and Republican accusations and countercharges, as well as incessant paybacks, have troubled judicial selection. This counterproductive dynamic has been primarily due to divided government.

Before now, this dynamic mainly plagued federal appellate vacancies, but it is currently affecting federal district court openings as well. Although Democrats control the White House and the Senate, they would be best served to cooperate with Republicans in order to stop, or at least reduce, this unproductive cycle.

The 179 appellate judgeships, 19 of which are open, are essential because the twelve regional circuits are the courts of last resort in their areas for 99 percent of federal cases (as the U.S. Supreme Court only very rarely grants review). Especially critical is the situation in the Second Circuit, which suffers vacancies in three of its 13 judgeships and resolves many important business cases.

President Obama, Who Has Consulted with Republican Home-State Senators, Cannot Be Blamed for the Crisis

President Obama cannot accurately be blamed for the persisting vacancies. Obama has thoroughly consulted with and solicited advice from Democratic and Republican home-state lawmakers before making his official nominations. (In the selection of judges, the President generally defers substantially to home-state senators because senators know home-state attorneys who are well-qualified.)

President Obama has also tapped 22 consensus appellate nominees who are of balanced temperament, and who are intelligent, ethical, diligent and independent, as well as diverse in terms of ethnicity, gender and ideology.

To expedite matters, the President should keep cooperating with Senator Patrick Leahy (D-Vt.), the Judiciary Committee chair, who schedules hearings and votes; Senator Harry Reid (D-Nev.), the Majority Leader, who arranges floor debates and votes; and their Republican counterparts to facilitate confirmation.

The Senate has approved ten federal appellate judges thus far. It should swiftly confirm the six who are awaiting floor votes, and finish its review of the remaining six.

Although appellate judgeships often receive more attention, the 679 district judgeships, 79 of which are vacant, are also very significant. District judges hold federal trials and ascertain facts (and/or oversee juries who do so). Appeals courts affirm 80 percent of their judgments.

Obama has also nominated 63 very talented individuals for federal district court seats. The Senate has confirmed 24 of these, and it should quickly confirm the 13 who are still awaiting floor consideration, and finish processing the remaining 26.

The District-Court Vacancies In Delaware Should Be a Priority

Before the Senate departed for its summer recess, which began on August 9, it confirmed Magistrate Judge Leonard Stark for the Delaware District Court. This was good news, as Stark is experienced and highly respected. But the process took too long: Stark waited several months for a Senate vote that came only late Thursday evening, as the chamber recessed. Moreover, there is another open seat on the District Court for the District of Delaware, which still needs to be filled.

The Delaware District Court holds a special place in the nation. Many business entities prefer to litigate in federal courts, and many incorporate in Delaware. These companies and their lawyers may believe that federal courts' stricter procedural requirements and their firm enforcement of discovery and other pretrial processes can lead to swifter resolutions -- often increasing litigants' ability to secure disposition before trial. The entities and their attorneys concomitantly find that federal judges can generally devote greater time to specific cases, and manage them more efficiently.

When announcing departing District of Delaware Judge Joseph Farnan's decision to retire on July 31, the Court's website stated that the jurist "was pivotal in cementing the Court's reputation as a national venue for complex litigation." The U.S. District Court for the District of Delaware has also recently emerged as an important venue for intellectual property cases. Indeed, in 2009, litigants filed a record 214 patent cases in the District.

The combination of the judicial openings (which until Thursday, had left the court half-staffed, with two judges but four seats) and the number of cases that are being filed means that the Delaware District Court has experienced a civil backlog, as the Speedy Trial Act accords precedence to criminal cases.

The tribunal has addressed the judicial deficit by bringing in federal judges from Pennsylvania and New Jersey to resolve civil matters. This augmentation of judicial resources has been helpful, but it is preferable to have judges who are permanently stationed in Delaware because they have greater familiarity with the local legal culture and the court's rising caseload.

Senator Tom Carper (D) recently recommended three candidates for the remaining U.S. District Court of Delaware vacancy. The President should promptly consider those names and nominate someone soon after the Senate returns.

Accordingly, over the August recess, the White House should assemble a package of nominees that includes prospects for the remaining District of Delaware vacancy, and for the many other appellate and district openings. President Obama should then promptly nominate, and senators should expeditiously confirm, many excellent federal judges after the Senate returns.

Carl Tobias is the Williams Professor at the University of Richmond Law School.